In Matter of HV Donuts, LLC v. Town of LaGrange Zoning Board of Appeals, the Second Department recently held that a property owner’s nonconforming use rights continue despite a temporary business interruption caused by a fuel truck accident and gasoline spill.

The property owner, Leemilt’s Petroleum, Inc. (the “Owner”), leased the subject property (the “Premises”) to a tenant who operated a gas station and a convenience store at the Premises. Both the gas station and the convenience store were legal nonconforming uses under the Town’s zoning regulations.

Under Section 240-29 of the Code of the Town of LaGrange (hereinafter the “Code”), a “nonconforming use . . . is one which existed lawfully” prior to the date that the Code or an amendment to the Code was enacted, which results in the failure of that prior use to conform to the Code (see Code § 240-29[B]). However, in order for such use to maintain its status as a nonconforming use, it must not be discontinued. The Code provides that a nonconforming use is deemed discontinued when “the nonconformity has ceased for a period of one year or more” (see Code § 240-29[F][4]).

The case arose out of an accident in June 2013, when a fuel delivery tanker hit a light pole, spilling approximately 3,000 gallons of gasoline on the Premises. This forced the gas station and the convenience store to temporarily cease business operations and begin remedial efforts. After the Owner completed the restoration work in October 2014, a leak was discovered in the gasoline pump system piping when it was tested in anticipation of reopening. This required additional remediation and further delayed the reopening.

Eventually, the Owner completed this additional work and thereafter sought approval from the Town’s building inspector to reopen the gas station. The Owner also applied for a building permit from the Town’s building inspector “to upgrade the convenience store building, which had not been damaged by the spill and remediation efforts.” Section 240-29(E) of the Code permits the “re-establishment of nonconforming uses after casualties,” under certain time conditions. Section 240-29(E) of the Code provides the following:

“If any nonconforming building or structure or any building or structure containing a nonconforming use shall be damaged or destroyed by fire or other casualty, such building or structure . . . may be restored and any such nonconforming use resumed to the extent that such building, structure or use existed at the time of the casualty, provided that a building permit for such restoration is obtained within a period of one year from such casualty and is diligently prosecuted to completion.”

Pursuant to that provision, the building inspector granted the Owner’s request, giving it one year from September 22, 2015—the date of the building inspector’s determination—to re-establish its nonconforming use.

A Dunkin Donuts franchise (the “Petitioner”) located across the street from the Premises appealed the building inspector’s determination to the Town’s Zoning Board of Appeals (the “ZBA”). The Petitioner contended that the nonconforming use had been lost and could not be re-established, citing Sections 240-29(E) and (F) of the Code.

The ZBA determined that “there was ‘more to maintaining a gasoline filling station than pumping gas,’” and that the “remediation of the petroleum spills amounted to a continuation of the nonconforming use.” Thus, there was no “discontinuation” within the meaning of Code Section 240-29(F)(4). Furthermore, the ZBA concluded that the building permit requirement of Code Section 240-29(E) did not apply to the convenience store because neither casualty affected the convenience store.

Ultimately, the Supreme Court rejected the Petitioner’s Article 78 challenge, holding that the ZBA’s determinations were rationally based and entitled to deference. The Second Department affirmed. Therefore, under HV Donuts, a nonconforming use may not be lost by remedial and restoration activities that temporarily shut down site operations, provided these activities are diligently pursued and completed.

The Long Island Pine Barrens Maritime Reserve Act, Environmental Conservation Law, Article 57 (the “Act”), was adopted in 1993 for the purpose of protecting approximately 102,500 acres of the Long Island Pine Barrens located within the towns of Brookhaven, Riverhead and Southampton.  The Act defines the boundaries of the Central Pine Barrens and divides it into two geographic areas, one a 55,000 acre Core Preservation Area (“CPA”), where development is generally prohibited, and the other a 47,500 acre area designated as the Compatible Growth Area (“CGA”), where development is permitted, but only in compliance with certain standards and guidelines designed to preserve the ecology and hydrology of the Central Pine Barrens.

The Act also mandated the creation and implementation of the Central Pine Barrens Comprehensive Land Use Plan (the “Plan”), and created the Central Pine Barrens Joint Planning and Policy Commission (the “Commission”).  The Commission oversees the implementation of the Plan and is charged with joint land use review, regulation, permitting, and enforcement along with local municipalities, as well as the operation of a transferable development rights and conservation easement program.  See, prior blog posts, Pine Barren Credits – There’s Money In Those Trees and Town of Babylon Imposes Moratorium on Use of Pine Barrens Credits to Increase Development Density

Among the Commission’s responsibilities is the review of applications for large-scale development that meets the threshold constituting a Development of Regional Significance.  Pursuant to the Plan, the following developments are defined as Developments of Regional Significance:

  • A commercial, industrial or office development project exceeding 300,000 square feet of gross floor area, or an addition to an existing commercial, industrial or office development where the addition is 100,000 square feet or more and that addition causes the total square footage to exceed 300,000 square feet.
  • A multifamily residential development project consisting of three hundred (300) or more units.
  • A single family, detached residential development project consisting of two hundred (200) or more units.
  • A development project resulting in a traffic impact which would reduce service by two (2) levels below existing conditions or to a level of service of D or below.

In order for the Commission to approve a Development of Regional Significance, the development must comply with all of the standards and guidelines set forth in Volume 1, Chapter 5, of the Plan.  The standards and guidelines are intended to minimize certain areas of environmental concern, such as nitrate and nitrogen discharge, wellhead protection, protection of wetlands and surface waters, stormwater runoff and recharge, and preservation of natural vegetation and plant habitat.  Developments that do not comply with the standards and guidelines may apply to the Commission for a hardship waiver, which can only be granted upon a showing of an extraordinary hardship or compelling public need.

Applications for Developments of Regional Significance are made to the Commission upon submission of a Transmittal Letter, Owners Affidavit, General Project Data Sheet and Standards and Guidelines for Land Use.  The application must also be accompanied by copies of prior approvals, the final approved map or site plan, other maps or data that document and support the information presented, an Environmental Assessment Form or Findings Statement and supporting documentation necessary to comply with the State Environmental Quality Review Act (“SEQRA”) and a Suffolk County Planning Commission determination (if applicable).

Within 60 days of the submission of a complete application, the Commission will hold a public hearing on the application, at which time the applicant and members of the public are provided an opportunity to comment on the development proposal.  The Commission must render a decision within 120 days after declaring an application complete, unless the time is extended by mutual agreement, otherwise the proposal is deemed approved by the Commission.

Developers that propose large-scale developments on lands within the Central Pine Barrens are wise to evaluate whether their proposals constitute Developments of Regional Significance early in the process because the Commission’s discretionary review process creates additional entitlement risk and can result in a longer timeline for securing project approval.

In Joy Builders, Inc. v. Town of Clarkstown, 2018 N.Y. Slip Op. 07110, 165 A.D.3d 1084 (2d Dept 2018), a developer (“Developer”), in connection with the development of two subdivisions, challenged a provision of the Town Code of the Town of Clarkstown (“Town”) which authorized the Town to withhold the issuance of building permits for a subdivision until the applicant/owner has completed the requisite infrastructure and improvements and dedicated the same to the Town.  The Supreme Court, Rockland County, denied the Developer’s motion for summary judgment and the Developer appealed.  The Appellate Division, Second Department, reversed and declared the Town Code provision null void and struck the subdivision conditions affected by that provision.

With respect to the Developer’s projects, the Town Planning Board had approved two subdivisions of 22-lots and 55-lots, respectively.  The approvals contained a condition requiring the Developer to build certain infrastructure and post performance bonds for each project.  Town Code Section 254-18B authorized the Town to withhold the issuance of building permits for 10% of the lots of each subdivision until the Developer completed and dedicated the infrastructure and improvements.  The basis of the “holdback” was to ensure that applicants/owners complete the requisite work.  During construction, the Town relied upon the holdback provision and withheld the issuance of buildings permits for three lots in one subdivision and six in the other.  The Developer, then, commenced this action challenging the Town’s withholding and seeking a declaration that Section 254-18B was null and void.

The Appellate Division noted that towns and municipalities lack the inherent power to enact zoning or land use regulations – rather, they are creatures of statute.  As such, towns may only engage the powers conferred by the State Legislature.  The pertinent statute, Town Law Section 277(9) authorizes the Town to obtain enumerated forms of security in order to ensure the full cost of infrastructure and improvements in the event a developer abandons a project.  However, withholding the issuance of building permits is not among these.  The Court determined that Town Law Section 277 does not expressly authorized the holdback and no such authority can be implied.  Therefore, Town Code Section 254-18B was inconsistent with the Town Law and the Town does not have the power to withhold building permits to provide financial security for the completion of work.

The Court declared Section 254-18B void and struck the conditions of withholding. The Court’s ruling reaffirms strict adherence to the enumerated powers for municipalities in the land use and zoning context.

Long Island’s potable water supply comes from one place: aquifers. And as the population of Long Island continues to grow steadily upward, this vital subterranean resource faces both a growing demand and a growing threat of pollution from human-driven sources. Consequently, the issues of groundwater quality and groundwater protection have been rising to the top of the list of concerns for many Long Island communities for some time.

At a recent meeting of the Shelter Island Town Board, the problem of groundwater pollution was once again up for discussion. Shelter Island, unlike some other Long Island communities, does not have public water. It also does not have public sewers. Accordingly, its residents rely on private wells and septic systems for the water supply and wastewater disposal. This reality makes Shelter Island residents particularly vulnerable to issues that arise when pollutants from septic systems—namely, nitrogen—find their way into the groundwater.

In 2017, Shelter Island’s Town Board created a rebate program to incentivize owners of residential property to voluntarily replace old septic systems with new low-nitrogen septic systems. Intended to supplement Suffolk County’s septic system grant program, the Town rebate is funded by the Town’s Community Preservation Fund and offers residential-property owners reimbursement of up to $15,000 for eligible septic system upgrades. Other East End towns, such as the Town of Southampton, have implemented similar programs.

Perhaps dissatisfied with the rate of response to its rebate program, the Town is now considering a new idea to speed up the installation of low-nitrogen septic systems. During their work session on December 11, 2018, Town Board members discussed the possibility of legislation that would require a low-nitrogen septic system to be installed on any improved residential real property in the Town that changes owners and does not already have a low-nitrogen system in place. The Board members also discussed the possibility of extending the Town’s rebate program to help fund those projects.

As of yet, there is no actual bill before the Town Board for its consideration, and as was made clear during its discussion on December 11th, the proposed legislation raises a number of questions that will need to be addressed:

  • Would such a mandate be lawful?
    • Some could argue that the legislation would impose an illegal restriction on a property owner’s ability to convey title to their property.
  • What title transfers would trigger the obligation to install a low-nitrogen septic system?
    • For example, in instances of inheritance, the law could impose an unexpected and potentially unaffordable financial obligation on family members.
    • Would a long-term lease trigger the need for an upgrade?
  • In the event of a sale, who is obligated to fund and perform the system upgrade as between the buyer and the seller?
    • The requirement to install a new septic system in conjunction with a sale will likely become a bargaining point during contract negotiations.
  • Must an upgrade be completed before or after title changes hands?
    • If before, the law could result in the delay of certain transfers while the responsible party pursues permits, grants/rebates, and completion of the project.
    • If after, how will the Town ensure that the upgrade is completed, and what will it do if it is not?
  • How will the Town ensure that transferors and transferees are aware of the law and its requirements in advance of the transfer of title?
    • What happens when unknowing parties conclude a transaction that would have required a new system to be installed?

Whatever the answer to these questions will be, the proposed legislation, if enacted, would represent a proactive and unique approach to combatting groundwater pollution on Long Island. This office will be monitoring the progress of the law if and when the legislation makes its way before the Board.

The Town of North Hempstead decided to ban recreational marijuana even before it becomes legal in New York. At its January 8, 2019 meeting, the Town Board unanimously adopted Local Law 1-2019, amending the Town zoning code, to prohibit the retail sale, distribution or offer of consumption of marijuana in all use districts.

The local law provides that no building, structure or premises approved or used as a medical marijuana dispensary may be used as a marijuana retail store. The local law also provides that no other building, structure or premises within any use district may be used for the sale, distribution or offer for consumption of marijuana or marijuana products in a retail setting or environment for non-medical use.

In a press release following the adoption of the local law, Town Supervisor Judi Bosworth noted that the Town Board members “certainly understand and support the need for medical marijuana dispensaries and their place in alleviating pain and discomfort in patients, we feel that this law prohibiting the sale of recreational marijuana addresses the concerns brought to us by many residents.”

This is not the first time the Town of North Hempstead used its zoning power to enact a local law controlling marijuana within its borders. In December 2018, the Town Board unanimously approved Local Law 12-2018, which restricts the location of medical marijuana dispensaries. Such facilities are prohibited from being located within 1,000 feet of a school, park, child care center or house of worship. These dispensaries also cannot be located within 500 feet of a Town residential district. The local law limits the number of dispensaries in the Town to two.

We shall see if other municipalities decide to use zoning to ban or control marijuana use within their borders. Stayed tuned for more developments.

In Peyton v. New York City Bd. of Standards and Appeals, (2018 N.Y. 06870, 166 A.D.3d 120 (1st Dept 2018), Petitioners-community residents (“Petitioners”) commenced a proceeding to challenge the City of New York (“City”) Board of Standards and Appeals’s (“Board”) resolution upholding the City Department of Buildings’s (“DOB”) decision to grant a permit for the construction of a twenty-story nursing home (“Project”) on the Upper West Side.  The main issue is the City’s “open space” mandate (“Open Space Law”) and whether the Project provides enough open space to suffice the requirement.  The Court rulings and the Project’s viability hinged entirely upon how to calculate compliance with the Open Space Law.

At the outset, it is crucial to note the difference between a building-by-building calculation for open space and an open space calculation in the aggregate.  The former calculates the required open space with respect to each individual building within a zoning lot, whereas the latter considers the open space requirement for all buildings existing on an entire zoning lot together.  This distinction is at the heart of the dispute.

Procedurally, as relevant herein, the DOB made its open space calculation for the Project based upon a “building-by-building” methodology and decided to issue the construction permit.  One or more of the Petitioners appealed the DOB’s decision to the Board.  The Board resolved to uphold the issuance of the permit and the calculation methodology, which resolution the Petitioners challenged in this proceeding.  The Supreme Court, New York County, denied the petition and affirmed the Board’s resolution.  Petitioners appealed and the Appellate Division, First Department, reversed.

The Project site is within a “superblock” zoning lot known as “Park West Village” comprising 308,475 square feet, or 7 acres (“Zoning Lot”) (between 97th and 100th Streets and Columbus and Amsterdam Avenues; the complex extends to Central Park, but that portion is not at issue).  The complex on the Zoning Lot was built in the 1950s and 1960s as part of a federally subsidized middle-income urban renewal project and includes residential buildings, a school, a church, a public library, a health center and commercial buildings.  There are four residential buildings: three original sixteen-story buildings and a more recently constructed twenty-nine-story mixed commercial and residential building (“Fourth Building”).

A forty-year deed restriction had prohibited construction on the Zoning Lot through 2006 and the present owner (“Owner”) acquired the land shortly before the prohibition expired.  Approving and constructing the Fourth Building was the center of controversy between Petitioners, Owner, the City and others, which controversy also revolved around the City’s open space requirements.

Since its inception in 1961, and despite amendments in 1977, the Open Space Law had no particular design or mode to address zoning lots improved with multiple buildings.  With respect to the Fourth Building, there was a disagreement over whether its rooftop open space could count towards the open space requirement for the entire Zoning Lot.  The Fourth Building’s rooftop space included a 42,500 square feet garden, with a mosaic tile saltwater pool, sundeck and lawn.  However, the rooftop garden provided access only to residents of the Fourth Building and did not allow access to occupants of other buildings within the Zoning Lot.  If the Fourth Building’s rooftop garden was included in the open space calculation, then the project met the requirements; if not, then the project would fail.

The DOB performed a building-by-building analysis for the Zoning Lot, included the rooftop garden in its calculation and issued a building permit in 2007.  Residents of Park West Village and others challenged the DOB’s approval based upon the fact that the Fourth Building’s rooftop garden did not provide access to all residents of the Zoning Lot and, thus, could not be included in the open space calculation.

In 2009, the Board resolved to affirm the DOB’s decision (“2009 Resolution”), wherein the Board noted that the Open Space Law’s language requires open space with respect to a “building,” not the zoning lot as a whole; therefore, open space among multiple buildings need not be common, centralized space shared by all occupants of the zoning lot, and the building-by-building methodology for calculating open space suffices.  The 2009 Resolution utilized the building-by-building methodology for the first time and stated: “as each of the buildings is allocated the amount of space that is in excess of that which would be required…if they were located on separate zoning lots, it cannot be seen how those residents would be deprived of an equitable share of open space by the proposed building.”  The Board’s resolution was challenged, but the challenge was settled out of court and the Fourth Building was completed.

Two years later, in February 2011, the City amended the Open Space Law (“2011 Amendments”).  The definition of “open space” has always been: “that part of a zoning lot, including courts or yards, which is open and unobstructed from its lowest level to the sky and is accessible to and usable by all persons occupying a dwelling unit or a rooming unit on the zoning lot.”  The 2011 Amendments modified several other provisions of the Open Space Law (e.g. “open space ratio,” “minimum open space,” etc.) by substituting the words “zoning lot” and “all zoning lots” for the words “building” and “any buildings,” focusing the law and its analysis upon the actual zoning lots – as opposed to individual buildings.

After the City enacted the 2011 Amendments, the Owner sought to utilize a former parking lot within the Zoning Lot, which Park West Village residents previously used.  The Owner entered into an exchange agreement with the Project’s developer (“Developer”) to swap the parking lot for another parcel of land located north of the Zoning Lot and owned by the Developer (“New Parcel”).  The New Parcel was large enough for the Owner to construct another luxury apartment building.  The Owner agreed to pay the Developer $35,000,000 and the Developer promised to complete the project on the former parking lot.  However, this exchange was contingent upon, among other things, the Developer obtaining a permit from the DOB for construction of the Project.

In March 2011, the Developer made its applications to the DOB, which expressly noted that the open space within the Project would be accessible to all persons occupying a dwelling unit on the Zoning Lot.  Developer’s open space calculations for the Project included all of the open space on the zoning lot, including the Fourth Building’s rooftop garden.  Petitioners objected and argued that, based upon the 2011 Amendments to the Open Space Law, the Fourth Building’s rooftop garden no longer counted towards the open space calculation for the Zoning Lot (due to restricted access) and that the building-by-building methodology was invalid.

The DOB disagreed and granted a building permit for the Project.  Petitioners appealed to the Board and the Board resolved to affirm (“2011 Resolution”), relying upon the 2009 Resolution: “in the case of a multi-building zoning lot, the open space definition could be read to allow some open space to be reserved for the residents of a single building as long as the residents of each building on the zoning lot have access to at least the amount of space that would be required…if each building were on separate zoning lots.”  The Board also noted that the 2011 Amendments did not dictate a change in the DOB’s or Board’s building-by-building methodology or open space analysis.

Petitioners challenged the Board’s 2011 Resolution by commencing this proceeding and argued that, even though the Fourth Building’s rooftop garden was arguably within the meaning of open space when it was constructed in 2009, it presently was not open space by virtue of the 2011 Amendments.  These changes to the Open Space Law eliminated any ambiguity as to how to calculate open space and the Fourth Building’s rooftop garden cannot be included because the area is not available to all occupants of the Zoning Lot.

It was undisputed that the Project sufficed the open space requirement with the inclusion of the Fourth Building’s rooftop garden.  It was also undisputed that the Project failed to provide adequate open space without the rooftop garden.  The Board’s main argument was that the City’s Open Space Law is ambiguous and, therefore, the DOB and the Board have discretion to construe it.  In particular, the Board argued that the definition of open space (with accessibility and usability for all residents within a zoning lot) is irreconcilable with the definition of “zoning lot,” which contemplated multiple buildings on a single lot.  Therefore, the Open Space Law was ambiguous and the DOB and the Board were free to interpret and reconcile this ambiguity, i.e. by utilizing the building-by-building methodology.  The Supreme Court denied Petitioner’s petition and dismissed the proceeding. Petitioners appealed and the Appellate Division reversed and annulled the 2011 Resolution.

On appeal, the Appellate Division disagreed with the Board and adopted the Petitioners’ argument that the 2011 Amendments removed the contextual basis upon which the Board relied.  Judicial deference should be given to an agency’s interpretation of a statute it is charged with implementing, unless the interpretation is unreasonable or irrational.  However, where the question is one of pure statutory interpretation, an agency’s interpretation is accorded much less weight and Courts are free to ascertain the proper interpretation from the statutory language and legislative intent.  Here, resolving the dispute concerning the 2011 Amendments does not implicate the expertise of the DOB or the Board as the implementing administrative agencies; instead, the resolution is one of pure statutory analysis and does not require deference to the agencies.

The Appellate Division held that the definition of “open space” is clear and unambiguous, requiring open space to be accessible to all residents of any residential building on the zoning lot – not only the building containing the open space in question.  The Court noted this clarity is further bolstered by the 2011 Amendments, which eliminated all references to “building” and replaced the term with “zoning lot” in the relevant Open Space Law provisions.  Therefore, any space, including a rooftop, that is to be considered “open space” for purpose of satisfying the requirement must be accessible and usable by all residents of the zoning lot.  In addition, the Court expressly invalidated the building-by-building methodology: “Lest there be any doubt, we find that the 2011 [A]mendments now preclude use of [this] methodology, which has been an exception to this clear statutory import.”

The Court also noted that absence of legislative history did not evidence an intent to accept the building-by-building methodology.  Rather, the 2011 Amendments replacement of the word “building” was an unmistakable rejection of the use of this formula.  Notably, one of the four Judges dissented, which may lead the case to the Court of Appeals.

In 1999, the Greenport Group, LLP (“Greenport Group”) acquired a 31 acre parcel of land located on the east side of Chapel Lane and the north side of the Main Road in Greenport in the Town of Southold. The southerly portion of the property was zoned “Limited Business” and the northerly portion was zoned “Hamlet Density”. When purchased, there were four buildings on the property, each containing two residential units that were part of a larger project to build multi-residence senior citizen housing, which had been approved for an additional 140 units. The Planning Board and Zoning Board of Appeals granted a conditional site plan and special exception approval for the construction of the multiple residence complex in or about 1976, with certificates of occupancy being issued for the four buildings on the property in 1984. The additional units were never built and no further construction took place on site.

On September 12, 2000, the Town Board of the Town of Southold adopted a local law, Local Law 20 of 2000, changing the zoning of the property to Residential Low Density, R-80. The R-80 designation increased the minimum lot size permitted on the property from 10,000 square feet to 80,000 square feet. The local law was filed with the Secretary of State on October 2, 2000. Thereafter, the Greenport Group filed a hybrid Article 78 proceeding and Declaratory Judgment action in Supreme Court on February 2, 2001, entitled Greenport Group, LLP and Adrienne Solof v. The Town Board of the Town of Southold, Index No. 01-2730, seeking a judgment declaring that the local law up-zoning the property was null and void. Greenport Group alleged that the Town Board’s actions were arbitrary and capricious, that the re-zoning subjected their property to disparate treatment and constituted reverse spot zoning, that they had vested rights in the prior zoning designations, that the rezoning was inconsistent with the goals of the Town Comprehensive Plan, and the rezoning constituted a regulatory taking of the property without just compensation. In response, the Town Board moved for summary judgment.

The Supreme Court, Suffolk County, by decision dated June 17, 2015, granted summary judgment in part, dismissing the Greenport Group’s claims that (i) the Town failed to comply with the notice requirements rendering the local law adoption invalid since plaintiff actually participated in the local law hearing, (ii) the Town’s adoption of the local law changing the zoning constituted impermissible spot zoning where Greenport Group failed to allege or offer evidence that the change was “for the benefit of the owner to the detriment of other owners”, (iii) that Greenport Group had vested property rights in the prior zoning of the property when no construction was performed on site in connection with the development prior to the zone change, and (iv) the re-zoning constitutes a taking without just compensation since Greenport Group citing an 80% diminution of the property’s value was deemed insufficient and failed to prove that the property was incapable of producing a reasonable return or that the economic value of the property was destroyed by the zone change.

The Supreme Court denied the Town’s motion for summary judgment relative to the second and fifth causes of action asserted by Greenport Group. The second and fifth causes of action asserted by the Greenport Group alleged that the Town Board’s adoption was arbitrary and capricious representing an unconstitutional abuse of the Town Board’s zoning authority, and that the re-zoning was unjustified and failed to achieve the purported goals of the local law and land use plans. Here, the Court found that Greenport Group had raised triable issues of fact as to whether the Town Board’s stated intent of the re-zoning was the actual purpose for re-zoning Greenport Group’s property. The Supreme Court stated, “[p]arenthetically, since the re-zoning was enacted approximately 14 years ago, the witnesses’ recollection as to the zoning classification was legitimately less than ideal. Although the Town Board’s decision appears to be supported by the CR48 Land Use Study… and tremendous deference is given to the local municipality’s decision-making process and its authority, the Court will not simply rubberstamp a local municipality’s assertion that it was following the advice of its own consultant. Instead, the Court must examine the record, including the adopted legislation, to determine whether the legislation was reasonable and enacted in accordance with the municipality’s land use plan. Here, notwithstanding the documentary evidence supporting the Town Board’s claim, plaintiffs raise questions of fact concerning similarly situated properties included within the CCG studies but treated differently by the Town Board.” Therefore, the Supreme Court denied the Town’s motion for summary judgment with respect to these two causes of action.

The parties cross-appealed the matter and the Appellate Division, Second Department, in its decision entitled Greenport Group, LLC et al., v. Town Board of the Town of Southold, dated December 5, 2018, remitted the matter to the Supreme Court for “severance” of the causes of action asserted by Greenport Group and the entry of judgment declaring the Local Law that changed the zoning classification was valid. The Appellate Division reviewed and affirmed the lower court’s dismissal of each of Greenport Groups causes of action. However, the Court found that the Supreme Court should have granted the Town Board’s motion for summary judgement with respect to the second and fifth causes asserting that the rezoning of the property was arbitrary and inconsistent with the comprehensive plan. The Appellate Division cited the “heavy burden of countering the strong presumption of validity accorded the enactment [of local laws]” and further stated that “if the validity of the legislative classification for zoning purposes is even ‘fairly debatable,’ the classification must be sustained upon judicial review (citing, Matter of Town of Bedford v. Village of Mount Kisco, 33 NY2d at 186).” The Appellate Division also found that Greenport Group failed to raise a triable issue of fact, contrary to the Supreme Court’s findings, regarding the purpose and intent of the re-zoning stating, “[w]hile the courts must satisfy themselves that the rezoning meets the statutory requirement that zoning be in accordance with the comprehensive plan of the community, this does not entail examining the motives of local officials (Udell v. Haas, 21 NY2d 463, 471).” Ultimately, the Appellate Division found that the local law changing the zoning classification of the Greenport Group’s property was valid and remitted the matter to the Supreme Court for appropriate judgment.

 

 

In a decision dated October 30, 2018, Supreme Court Judge Joseph Pastoressa remanded a decision made by the Southampton Village Architectural and Historic Board (BARHP) for further consideration. Manger et al. v. Board of Architectural Review and Historic Review of the Village of Southampton.

 The property owner in Manger applied to the BARHP for a certificate of appropriateness to construct a single family dwelling and accessory structures on two separate lots in the Village of Southampton. The lots are in a Historic District which requires a Certificate of Appropriateness as a condition precedent to issuing a building permit.

During the public hearing process that resulted in an approval of the application, the Board stated that it could not consider the size of the house in its review of the proposed construction. The Board took this position because the house as proposed fully complied with the Zoning Code of the Village of Southampton. That position was supported by Board precedent and a prior decision in Ferrara v. Board of Architectural Review.

Immediate neighbors of the property brought the Article 78 proceeding and argued that scale and size were different measurements and the Board could consider the scale of houses and any corresponding impact on the neighboring properties. Alternatively, the property owner and Village argued that if a house complied with Zoning then the BARHP was powerless to require a reduction in size. Ultimately, Judge Pastoressa rejected that argument and sent the matter back to the Board for re-consideration.

This case highlights the tension between the Zoning Code and the Historic and Landmark Preservation Code. Historically, zoning was enacted to protect light and air between properties. This protection is accomplished through setbacks and the restrictions on the size of a structure. One of the stated considerations of the Historic and Landmark Preservation Law is the impact of new construction on the character of nearby properties.

As held by Judge Pastoressa, the BARHP now may consider the impact of new construction on surrounding properties. But, that consideration still must include an analysis of the new construction under Zoning Code provisions.

Since the Declaration of Purposes of the Zoning Code (§116-1) and the Legislative Findings and Intent (§65-1) in the Historic and Landmark Preservation Law share many common core goals, compliance with the Zoning Code is certainly compelling if not overwhelming evidence that the mass and scale of new construction is appropriate.  So, while the option to reduce the size of a structure is seemingly available to the BAHRP, it must show that the Zoning Code somehow failed to achieve one of its basic goals. There must be significant evidence showing an impact not addressed by the Zoning Code for the BARHP to reduce the size of a structure under that which is allowed by Zoning.

Ultimately, this leaves a potential purchaser of real property in a bind. Any advice by counsel to a purchaser must be given with a caveat that the BAHRP has final say and compliance with the Zoning Code does not guarantee approval.

 

Due to the proliferation of advanced mobile devices, such as smartphones and tablets, wireless service providers anticipate a significant increase in data traffic over their networks in the next few years.  As a result, mobile operators have been compelled to find new ways to increase their network capacity, provide better coverage and reduce network congestion. One solution has been to create a new small cell network consisting of a series of small low-powered antennas – sometimes called nodes – that are typically attached to existing utility poles or streetlights located in the public right of way. In many municipalities, however, service providers and their contractors are facing strong opposition from elected officials and residents who have expressed concerns about the impacts from this new equipment.

One of the more recent battles is currently taking place in the Westchester County community of Rye, where an application by Crown Castle NG East LLC (“Crown Castle”) has already been the subject of two lawsuits, one which resulted in a ruling that delays associated with environmental review pursuant to the State Environmental Quality Review Act (“SEQRA”) do not violate the Telecommunications Act of 1996 (“TCA”).

The City of Rye (“City”) entered into a right of way use agreement (“RUA”) with NextG Networks of NY, Inc. (“NextG”) on February 17, 2011. Pursuant to the RUA, NextG was authorized to install and operate a form of small cell technology, known as distributed antennae systems (“DAS”), to expand existing wireless telephone services and coverage by installing its equipment within the public right of way (“ROW”), mostly on pre-existing utility poles. Between 2011 and 2015, NextG installed nine nodes within the public ROW on existing utility poles.

The RUA precluded NextG from assigning or transferring its rights under the agreement, except in limited circumstances and only with prior written notice of its intent to make such a transfer. Thereafter, on April 10, 2012, NextG became a wholly owned indirect subsidiary of Crown Castle International Corp., but NextG did not notify the City of its transfer of rights under the RUA until May 25, 2012.

In December of 2015, in some unspecified manner, Crown Castle advised the City of its intent to install equipment cabinets within the public ROW that are dimensionally larger than the pre-existing cabinets. The request was memorialized in a letter from Crown Castle to the City Council on April 8, 2016. In a subsequent letter, dated June 24, 2016, Crown Castle requested that the City Council adopt a resolution confirming that its application to install larger equipment cabinets was a Type II action under SEQRA or, alternatively, adopt a SEQRA “negative declaration” at its next public meeting.

Public hearings were held on Crown Castle’s application in July, August, and October of 2016 and in April of 2017. At the October 5, 2016 public hearing, the City Council declared its intention to as serve as lead agency for purposes of reviewing Crown Castle’s application under SEQRA. During the April 22, 2017 public hearing, the City Council issued a “positive declaration” for the proposed project under SEQRA. It also indicated that, in the event that the application is determined to be exempt from SEQRA, the application should be denied.

A positive declaration is a determination that an action may result in one or more significant environmental impacts and requires a comprehensive environmental review of the action, including the preparation and review of an environmental impact statement (“EIS”), before an agency decision may be made regarding the action. The SEQRA regulations contain mandatory minimum and maximum time periods associated with the processing of EISs that necessarily postpones a lead agency’s final decision until after the SEQRA process has been completed. A negative declaration is a determination by the lead agency that an action will not result in a significant adverse environmental impact and consequently no EIS will be prepared.

Following the City Council’s adoption of a positive declaration, Crown Castle commenced an action in the United States District Court for the Southern District of New York, entitled Crown Castle NG East LLC v. The City of Rye, et al., 17 CV 3535 (E.D.N.Y., December 8, 2017), alleging that the City and City Council violated the RUA and the TCA.  Crown Castle also alleged claims under Article 78 of the CPLR and the New York State Transportation Corporations Law (“TCL”). The City moved to dismiss the complaint on the basis that Crown Castle failed to state a TCA claim.

Section 253(a) of the TCA provides that “no State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” Section 253(c) further provides that “nothing in this section affects the authority of a . . . local government to manage the public rights-of-way . . . on a competitively neutral and nondiscriminatory basis.” Section 332(c)(7)(B)(iii) states that “any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence in a written record.”

With respect Crown Castle’s claim that the City’s 18-month delay in providing a decision on its application amounted to a prohibition of telecommunications services under TCA § 253(a), the Court disagreed and held that the City’s review process, including the associated SEQRA review, was not a “legal requirement” prohibited under TCA § 253(a). It also noted that the TCA does not render a SEQRA review or any delays associated with that review a violation of federal law.

In support of its holding, the Court cited the District Court’s decision in New York SMSA Ltd. P’Ship v. Town of Riverhead Town Board, 118 F.Supp.2d 333 (E.D.N.Y. 2000), aff’d, 45 Fed App’x. 24 (2d Cir. 2002), where the court noted that “a positive SEQRA declaration necessarily delays a final decision” and that “this court will not hold that a local government’s invocation of that statute is precluded because of the existence of the TCA.” The Court also held that municipal review alone cannot be a proscribed barrier to entry under Section 253(a) because the TCA § 332 requirement for “substantial evidence” necessitates a thorough review in order to justify the denial of a request to place, construct, or modify wireless facilities.

The Court also rejected Crown’s other TCA claims. It found that TCA § 253(c) does not create a stand-alone violation of the TCA because it is a safe harbor for municipalities or a “savings clause” that carves out liability rather than imposes it. The Court also found that because the City’s “denial” was hypothetical, it was neither a “regulation” nor a “decision” for purposes of stating a TCA § 332(c)(7)(B) claim. Moreover, the Court noted that the purported “denial” was not a final decision for Section 332 because a SEQRA positive declaration is not a final agency decision that is reviewable under New York law. Accordingly, the City’s motion to dismiss was granted.

The dispute continued in the Westchester County Supreme Court in Crown Castle NG East LLC v. The City of Rye, et al., 50310/18 (Sup. Ct., Westchester Co., August 20, 2018), wherein Crown Castle sought to have its state law claims adjudicated. However, the Court never addressed the merits of the state law claims because it concluded that Crown Castle was not a proper assignee or transferee under the RUA and, therefore, did not have standing to maintain the proceeding.

While these two decisions represent significant victories for the City of Rye and its residents, both decisions were made on procedural grounds, and neither addressed the merits of Crown Castle’s federal and state law claims. Communities throughout New York and elsewhere that have been presented with applications for the installation of small cell nodes will undoubtedly be watching closely to see how Crown Castle’s battle with the City of Rye ultimately plays out.

If you have any questions concerning the subject matter of this post, please contact Anthony at aguardino@farrellfritz.com.

 

Local zoning ordinances throughout New York State incorporate the flexible “accessory use” component so as not to unnecessarily restrict one’s use of property.  Accessory uses are incidental and customary to the principal use of property. Determining whether a use is actually “accessory,” however, is often debated – especially where the use is not specifically enumerated as such or where the ordinance does not define the use.

Recently, in Brophy v. Town of Olive Zoning Board of Appeals, 2018 N.Y. Slip Op. 07388 (3d Dept), the accessory use debate engaged the Appellate Division, Third Department.  Ashokan Dreams, a bed-and-breakfast on 28-acres in the Town of Olive (“Town“), began operating in 1998.  Ashokan Dreams was zoned “residential-rural-3A,” which permitted, among other uses, “tourist homes,” “boardinghouses” and “commercial recreation.”

The proprietors of the bed-and-breakfast first sought and obtained site plan approval, without conditions, from the Town Planning Board (“Planning Board“) for a single guest bedroom bread-and-breakfast operation in 1998.  Almost two-decades later, and without further approvals, Ashokan Dreams had expanded to three guest rooms and offered weddings – upwards of 12 each year – with limited lodging.  In 2015, the Town Zoning Enforcement Officer (“ZEO“) advised Ashokan Dreams in writing that site plan review was required because the weddings had grown to affect the health, safety and welfare of the neighbors and that site plan review would be a proper remedy via the imposition of certain limitations.

Ashokan Dreams submitted a site plan application to the Planning Board, which referred the matter to the ZEO and the Town Zoning Board (“ZBA“).  After a public hearing, the ZBA determined that the weddings were a “permitted special use to a bed-and-breakfast” requiring site plan review and remitted the matter back to the Planning Board.  Notably, the ZBA also reasoned that periodic seasonal events, including weddings, could be an “accessory use” at the site.  Neighboring property owners and a neighborhood association (collectively “Neighbors“) commenced an Article 78 proceeding seeking to annul the ZBA’s determination.  The Supreme Court, Ulster County, partially granted and partially dismissed the Neighbor’s petition, holding: the ZBA correctly determined weddings were an accessory use, but erred by legislating a “new use subject to a special permit requirement.”  The Neighbors appealed challenging, inter alia, the accessory use finding and the Appellate Division affirmed.

The Third Department noted that, generally, a zoning board’s interpretation of local zoning ordinance is afforded deference and will only be disturbed if it is unreasonable or irrational.   This deferential standard was applicable “because [determining] whether a proposed accessory use is incidental and customarily found in connection with the principal use of property is, to a great extent, fact-based.  Resolution of the accessory use question depends upon an analysis of the nature and character of the principal use of the land in question in relation to the accessory use, taking into consideration the over-all character of the particular area in question.”[1]

In its analysis of whether the wedding venue accessory use was customary and incidental to the bed-and-breakfast, the Court considered the character of the use and the area in question.  The district permitted “tourist homes,” “boardinghouses” and “commercial recreation.”  Tourist homes are dwellings which offer up to four rooms for transient guests.  Boardinghouses are dwellings occupied by one family and three or more lodgers.  Each of these uses permit the provision of services of a temporary residence.  Commercial recreation is defined as making use of mountain land, including resort hotels, seasonal commercial camps resort ranches, resort lodges and bungalow colonies.  Notably, another bed-and-breakfast in the same district offered similar weddings services.  The Court found held that the ZBA’s determination was not irrational or unreasonable and its reliance, in part, on the fact that another bed-and-breakfast within the same district also offered wedding services was not in error.

[1] The Town ordinance defined “accessory use” as one that is customarily incidental and subordinate to the principal use of the premises. And, for all residential districts, the Town ordinance authorized any other accessory buildings or use considered by the ZBA to be customarily incidental to any related principal use therein.